1. The Third Presidency Magistrate, Saidapet, Madras City, has made this reference to the High Court under Section 432(2) Cr. P. C. for its decision on certain questions of law which arose during the hearing of C. C. No. 5192 of 1961 on his file. The facts that led to the reference are briefly the following:
2. One P. Ramaswami, accused in the case is the Editor, Printer and Publisher of a paper called 'Nathigam'. In three issues of this paper an article under the caption 'Allavin Thandanayil Alangolam' was published and it is alleged that the above publication was made with deliberate and malicious intention of outraging the religious feelings of the Muslims and that consequently the accused committed an offence under Section 295-A I. P. C. ' In order to comply with the provisions in Section 196 Cr. P. C., which prescribes that a complaint made by the order of, or under authority from the State Government, is an essential prerequisite before a court can take cognizance of the offence under Section 295-A I. P. C., the State Government issued G. O. Ms. No. 2129 Home Department dated 23rd June 1961. This G. O. ordered that a complaint be made against the above said P. Ramaswami, in respect of the offence punishable under Section 295-A I. P. C. and directed the Commissioner of Police, Madras, to depute a suitable officer to make the complaint as aforesaid. On receipt of this G. O., the Commissioner of Police, Madras, issued certain proceedings dated 14th July 1961, which stated inter alia
'. . ... .whereas public interest warrantsan investigation, I, by virtue of the powers conferred on roe under Section 155 Clause (2) Crl. P. C. hereby authorise Sri J. M. Ranjitham, Sub Inspector of Police, Crime Branch, Madras City, to register a case and investigate it'.
It may be pointed out that Section 295-A I. P. C. is a non-cognisable offence and that under Section 155 (2) Crl. P. C. no police officer shall investigate into a non-cognizable case without the order of a magistrate of the first or second class having power to try such a case or commit the same for trial, or of a Presidency Magistrate, under Section 7 of the Madras City Police Act, the Commissioner of Police in the Madras City can exercise the powers of a presidency Magistrate except those under Ch. 18, 20 or 21 Crl. P. C. Thus the Commissioner of Police seems to have issued the above proceeding under Section 155 (2) Crl. P. C., by virtue of his powers as presidency magistrate. Acting on the above direction, the Sub Inspector of Police registered a case, prepared the several F. I. R. and recorded the statements of witnesses under Section 162(2) Crl. P. C. But at the conclusion of the investigation, he, did not file a charge-sheet, in the form prescribed under Section 173(1)(a) Crl. P. C. On 9th August 1961, the Commissioner of Police after quoting the G. O. Ms. No. 2129 Home Department dated 23rd June 1961, issued proceedings thus-
'Sri J. M. Ranjitham, Sub Inspector of Police, Central Crime Station is deputed to prefer a complaint under Section 195-A I. P. C. against Sri Ramaswami, Editor, Printer and Publisher of 'Nathigam'.
Thereupon the Sub Inspector filed a complaint dated 15th August 1961 before the learned Magistrate under Section 295-A I. P. C. The Magistrate took thecase on the file. Section 295-A is an offence triable under the warrant procedure. After the amendment of the Criminal Procedure Code in 1955, two forms of procedure are prescribed for the trial of warrant cases, one under Section 251-A for cases instituted on a police report; the other under Section 252 for cases instituted otherwise than on a police report. The magistrate construed this as a case instituted on a police report. He thereupon proceeded under Section 251-A Crl. P. C. and after going through the record of investigation made by the Sub Inspector of Police, framed a charge against the accused and asked the accused to plead guilty or not guilty.
3. At this stage, the magistrate seems to have entertained certain doubts regarding the legality of the procedure followed up till then. He has referred to Section 196B Crl. P. C. which states that in the case of any offence in respect of which the provisions of Section 196 will apply, a District Magistrate or a Chief Presidency Magistrate may, notwithstanding anything contained in that section or in any other part of the Code, order a preliminary investigation by a police officer not being below the rank of inspector in which case such police officer shall have the powers referred to in Section 155 Sub-section (3) Crl. P. C. In view of this provision, the learned Magistrate entertained a doubt as to whether the investigation conducted by the Sub-Inspector, Ranjitham, on the direction of the Commissioner of Police, was a valid one or not. The further doubt that he entertained was whether the complaint filed by Sub Inspector, on which he took cognizance of the offence, was a complaint within the meaning of Section 4(1)(h) Crl. P. C. or a police report forwarded under Section 173 (1) (a) Crl. P. C. Arising out of these doubts, he has referred the following points of law to this Court for decision-
'1. Whether the so called complaint submitted by the Sub Inspector is a complaint within the meaning of Section 4(1) (h) of the Crl. P. C. or a police report forwarded under Section 173 (1) Crl. P. C. and what is the procedure to be adopted on the complaint submitted by Sri Ranjitham in this case.
2. Whether the order of the Commissioner ofPolice directing the Sub Inspector to register and investigatethe case and the subsequent investigations done bythe Sub Inspector are null and void, if so, whether thisCourt can take cognizance of the complaint on the reportsubmitted by the Sub Inspector as a result of that investigation'.
4. At the hearing of this reference, we had the assistance of the learned Public Prosecutor. Though due notice was given to the accused, there was no appearance on his behalf.
5. Instead of taking up separately the two points referred to us we will consider them together, as they are interconnected. Section 190 Crl. P. C. is the first section in Section B of Schedule XV Crl. P. C. dealing with the conditions requisite for initiation of proceedings before a criminal court in enquiries and trial. Section 190(1)(a) and (b) read-
'1. Except as hereinafter provided, any presidency Magistrate, District Magistrate or Sub Divisional Magistrate, and any other Magistrate specially empowered in this behalf may take cognizance of any offence--(a) upon receiving a complaint of facts which constitute such offence; (b) upon a report in writing of such facts made by any police officer'.
In regard to an offence under Section 295-A I. P. C. Section 196 Crl. P. C. prescribes that no Court shall take cognizance of the offence unless upon complaint made by order of or under authority of the State Government, or such other officer empowered by the State Government in this behalf. It is such a complaint that gives jurisdiction to the magistrate to take cognizance, of that offence under Section 190 Cr. P. C. Section 195 Crl. P. C. is expressed in. the most general terms so far as the person empowered to make a complaint is concerned. The State Government can authorise any officer under it to prefer the requisite complaint. The officer making the complaint need not necessarily be a police officer. To give an instance : Section 196 includes offences under Ch. IX-A I. P. C. relating to elections, for the offence of false impersonation at an election (Section 171-D I. P. C.) the State Government can very well authorise the election officer for file the complaint. Such a complaint will be taken cognizance of by a court only under Section 190(1) (a) Crl. P. C. The essential question for consideration which arises in this case, is whether merely because the officer whom the State Government authorised to make the complaint happened to be the Commissioner of Police, and he in turn, conferred authority on a Sub Inspector to file the actual complaint the complaint falls within the scope of Section 190(1) (b) Crl. P. C. which refers to a report in writing of such facts made by any police officer. At this stage, one may recall the definition in Section 4(1) (h) Cri. P. C. which defines a 'complaint' as an allegation made orally or in writing to a magistrate with a view to his taking action under this Code, that some person whether known or unknown has committed an offence; but it does not include the report of a police officer. For construing Section 190 (1) (b) the provision in Section 173 (1) (a) Crl. P. C. can be referred to. It provides that on the completion of investigation the police officer shall forward to the magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government etc. But in regard to the complaint to be filed under the authority of the Government under Section 196-A (Sic Section 196?) Crl. P. C. no prior investigation by a police officer and no formal report as prescribed under Section 173 Crl. P. C. are necessary. The very fact that the Government authorised a particular officer to make a complaint to the court, presupposes the completion of a preliminary investigation on the basis of which the Government were satisfied that a prima facie case has been made out. Therefore the complaint filed after an authorisation by the State Government under Section 196 Crl. P. C. should be treated as a complaint within the meaning of Section 190(1)(a) Crl. P. C. on which the Magistrate can take cognizance. Though in a particular case it happens that a police officer was authorised by the State Government to make the complaint or not, in our opinion, makes any difference in regard to the applicability of Section 190 (1)(a) Crl. P. C. to such a complaint.
6. There are also some obvious difficulties in the way of accepting the other view of the matter. In the first place, the terms of Section 196 Crl. P. C. as has been already pointed out, are quite general, and will apply to complaints made by any person whether a police officer or not, acting under the authority of the Government. It will be unreasonable to classify such complaints further into two categories one under Section 190 (1) (a) and the other under Section 190 (1) (b) based merely on the circumstances whether the person making the complaint is a police officer or not. The generality of the scope of Section 196 precludesany such differentiation. Secondly, after the amendment of the Code in 1955, two methods of procedure for the trial of warrant cases are laid down. In a case instituted on a police report, the trial has to follow the procedure specified under Section 251-A which is a shortened form of procedure, enabling the magistrate to frame a charge against the accused based upon the record of investigation by the police without a fresh examination of the prosecution witnesses. In all other cases, he has to follow the procedure specified in the other sections of Ch. XXI; in other words he has to examine the prosecution witnesses, and frame a charge if he is satisfied that a prima facie case has been made out against the accused and give the accused opportunity for a further cross-examination of the prosecution witnesses after the framing of the charge. The reference in Section 251-A Crl. P.* C. to the various documents prepared by the police during investigation and on which the Magistrate can act for framing a charge shows that the report in writing preferred under Section 190(1)(b) is the report which follow investigation by the police under the appropriate provisions of the Crl. P. C. But so far as the complaint under Section 196 is concerned, it has to be presumed that the investigation has been made already and that no further investigation is contemplated in the interval between the authorisation by the Government and the actual filing of the complaint. This will again be a reason to construe such a complaint one falling under Section 190(1)(a) Crl. P. C.
7. In the present case, there has been, no doubt an investigation by the police Sub-Inspector, in the inter-rugnam between the Government order which authorised the Commissioner of Police to file a complaint and the actual complaint by the Sub Inspector under authorisation of the Commissioner of Police, under Section 196 Crl. P. C. The learned Magistrate who made the reference to us, entertained a doubt as to whether this investigation itself is valid bearing in mind Section 196-B Crl. P. C. For disposing of this particular reference, it is not necessary to give a finding as to whether in a given case to which Section 196-B applies an investigation by the police without the authorisation of the District Magistrate or the Chief Presidency Magistrate, but under the orders of a magistrate of the first or second class or a Presidency Magistrate as provided under Section 155(2) Crl. P. C. is legal or not. The investigation made by the Sub Inspector under the orders of the Commissioner of Police, in this case, can at best be treated as a proceeding not strictly relevant for the purpose of the statutory complaint filed under Section 196 Crl. P. C. That such an enquiry or investigation which was not strictly relevant happened to intervene before the actual filing of the complaint will not, in our opinion, alter the nature of the complaint for the purpose of taking cognizance by the magistrate under Section 190(1)(a) Crl. P. C. In spite of there having been such an investigation not strictly relevant for the purpose, the complaint before the magistrate would: still fall under Section 190(1)(a) Crl. P. C.
8. We therefore answer the questions referred to us thus: Question 1: The complaint submitted by the Sub Inspector is not a police report under Section 173(1) Crl. P. C. It is a complaint within the meaning of Section 4(1)(h) Crl. P. C. of which the Magistrate has to take cognisance under Section 190 (1) (a) Crl. P. C. Question 2 : For the purpose of the jurisdiction of the court in taking cognizance of the offence under Section 190(1)(a) Crl. P. C. mentioned in point (1), it is irrelevant to consider whether the investigation by the Sub Inspector under theorder of the Commissioner of Police was a proper one or not. Even if the investigation is to be held as void or illegal, the complaint filed by the Sub Inspector on 9th August 1961 derives authority from the appropriate order of the Government based under Section 196 Crl. P. C. and the order of the Commissioner of Police in pursuance of that Government Order. The complaint is therefore legal and the court has to take cognizance of it under Section 190(1)(a).
9. From the foregoing findings, it will follow that the Magistrate has to adopt, the procedure specified under Section 252 Crl. P. C. for the trial. The charge framed by him under Section 251-A is unauthorised and illegal. Accordingly we quash it.
10. The reference is answered as above, and thelearned Magistrate is directed to proceed to dispose ofthe case in accordance with the above findings and observations.